NHS compensation culture: do patients justice

Periodically news emerges of massive payouts to people who have suffered injury as a result of NHS care. Big compensation claims (the stuff of nightmares for trusts, patients and families alike) hit the headlines because of the seven figure sums paid and the horrific nature of the injuries. The other alarming fact is how long some cases take to settle.

In 2007-08 it took an average of 1.5 years to reach a settlement on claims handled under the NHS clinical negligence scheme for trusts, a voluntary risk-pooling scheme that began in April 1995. Between April 1995 and 31 March 2007, surgery received 15,627 claims, followed by obstetrics and gynaecology at 8,532. But claims in obstetrics and gynaecology cost£2.5bn, compared with£1.1bn for surgery. Also in this period, 20 per cent of all claims and around 60 per cent of all payments related to births.

However, settling claims handled under the existing liabilities scheme, which is for incidents that occurred before April 1995, took an average of over five years to settle.

The NHS Litigation Authority has handled negligence claims made against the health service since 1995. Chief executive Steve Walker says the timescale for dealing with claims is "not brilliant" but "not bad".

"Given the nature of the injuries, about one and a half years compares pretty much with the insurance industry on relatively complex personal injury claims," he says.

Delays in existing liabilities claims often result from the nature and complexity of cases, which nearly always involve brain-damaged babies. There are in-built delays to these cases, which cannot be settled until the child is at least seven years old - the age at which it is deemed doctors can make a prognosis and determine how much care and support they are likely to need over their lifetime.

And while parents may contact a lawyer straight away if they feel it is obvious a birth was mishandled, in other cases they might wait until the child is older. So it could be 10-12 years before the case comes to court, then a further three to four years before a settlement is reached. If a child under 18 is injured, they have until their 21st birthday to bring a claim themselves. Some claims take decades to settle (see case studies below).

Expect delays

There is an established protocol in place for both parties which allows a hospital 14 days to acknowledge a claim letter and then a further three months to give a reasoned answer and say that the claim is admitted, or if it is not admitted, to give specific comments on the negligence claim and provide their own version of events. But there is frequently a delay in trusts starting the investigation process, says Amanda Stevens, president of the Association of Personal Injury Lawyers and a former hospital manager.

"Where hospitals differ from other types of accidents [such as road traffic accidents] is that delay becomes entrenched through the rest of the process. We find they're not normally ready to even contemplate a settlement until they are just about ready for trial."

These delays are at least partly explained by long waits to get expert medical evidence. But on top of that, Ms Stevens says, the NHS, unlike insurers, has not built cost-benefit into its models for settlement and there is no cut-off point for settling. "The NHS just does not seem to have got a grip on the cost profile of a case," she says.

Mr Walker denies this. "We do try to apply cost-benefit analysis to how much work we will do and how far we will go to defend lower value claims," he says.

For cases likely to reach compensation claims in seven figures, however, such a model is not used because the Litigation Authority "can't cut corners", he says. "Even if we wanted to, our auditors would want to know what on earth we were doing taking a less than rigorous and thorough approach to justifying those kinds of settlements. We'd be shot if we got it wrong because it is taxpayers' money we're spending."

Opinions vary on the behaviour both of claimants and of the NHS as a defendant when it comes to handling negligence claims.

Kirsten Blohm, a partner at Hempsons Solicitors, which handles clinical negligence cases for the Litigation Authority, says delays come from both sides and adds "the NHS to a certain degree is at the mercy of the claimant" to set out their concerns so it can respond.

"If the solicitors acting for the injured person don't do that with any speed, then there's nothing the NHS can do in terms of progressing," she says.

But John Pickering, a partner and head of personal injury at Irwin Mitchell, who acts on behalf of claimants, says the defence drags its heels when it comes to deciding whether they will admit or dispute a liability, despite the fact that it has access to the people who know exactly what happened.

"There will be cases where there is pretty clear negligence and that really ought to be admitted and matters progressed, even if it is a heavyweight case," he says.

Emma Holt, a partner and head of clinical negligence at solicitors Pannone, also acts on behalf of claimants. She says that even in brain injury cases, defendants pursue cases through legal channels rather than settling, even where there is no angle to defend.

This is refuted by lawyers working on defending clinical negligence claims. "It's very easy to think when you're a claimant [and] you've got supportive evidence that it's blindingly obvious that the defendant ought to make an admission, but from the defendant's point of view, it may not be blindingly obvious and has to be investigated and evidence gathered appropriately," says Capsticks clinical law team partner Peter Marquand.

Mr Pickering adds that the number of cases being pursued on conditional fee agreements, which use no-win no-fee lawyers, should be an added incentive to make earlier decisions about whether or not to fight a case. He is keen to point out that their use has increased after the government's decision to limit legal aid to children and people in financial difficulties.

Delays in settling also occur because of protracted arguments about payments over time (as opposed to a lump sum) and about who is going to pay for the care needed for an injured party. On the latter issue, claimants argue the Litigation Authority should pay all compensation costs, including those for ongoing care, because local authorities cannot be relied on to provide a whole care package.

Mr Walker says that even if care is needed as a result of negligence, there is a statutory requirement for local authorities to provide that care, though eligibility criteria vary widely. Although it has been a matter of concern for those in the sector for a number of years, the government made no pronouncements either way. But Mr Walker believes that if the government does takes steps to resolve the issue, it will say the "wrongdoer" (in this case the health service) should pay.

Apologise and explain

In the current system, taking legal action is the only way patients can get compensation, says Action Against Medical Accidents chief executive Peter Walsh. For cases that become successful claims, he says most have seen three or four missed opportunities - including an NHS complaints procedure process, an internal investigation and an initial defence of the claim - where the claim could have been resolved without the need for litigation.

Mr Walsh believes the government has shied away from alternatives to litigation. The NHS Redress Act 2006 (which proposed a framework for an NHS redress scheme for compensation for lower claim schemes without resorting to legislation) was meant to be an alternative, but although it received royal assent, implementation has been slow and Mr Walsh says civil servants have told him it is in the long grass. He would like to see a system used that would take the focus off individual errors and look at system errors and root causes of incidents, removing the need for litigation and bringing the compensation scheme more in line with the patient safety drive.

While compensation to help cope with disability is an important motive for pursuing a claim, many people just want an apology and an explanation of what went wrong. Claimants also commonly want lessons to be learned and to avoid the same thing happening to other people, adds Mr Walsh.

Kate Coyle and her husband Christopher are typical. They say they were just after an apology when their daughter Chloe died from meningitis at the age of two years and nine months in September 2002 as the result of mistakes made by staff at St George's Hospital in Tooting, London.

The trust sent them a letter a couple of weeks after Chloe's death, inviting them to a meeting where they would explain what had happened. "We were there when it happened. We didn't need them to answer any questions," says Ms Coyle. "There were several mistakes that could have been prevented - like if she'd just had antibiotics in the first place. We just wanted them to admit where they were wrong and to confirm that they were trying to stop it happening again."

The Coyles felt the only way to progress their case was to find a solicitor through Action Against Medical Accidents. The solicitor agreed to take the case on a no-win no-fee basis as they could not afford legal fees and were not eligible for legal aid. Their solicitors later advised them to accept a compensation offer from the trust of£25,000, since it was the amount they would be likely get if the case went to court. If they rejected it and were later offered the same or less in court, the Coyles would then be liable for court costs, so they felt they had little choice but to take the offer.

"The whole reason we did it was for them to admit they were wrong and for an apology and we ended up having to accept money from them, which we never wanted to do," says Ms Coyle. "It took three years for them to admit they were wrong and all we got was an apology [in] a tiny paragraph and that was it."

The trust produced its own report on how care could be improved but refused calls for an independent report into Chloe's treatment.

"If you don't get [an apology] early on, it later loses its impact because the claimant often just feels it's adding insult to injury," says Ms Stevens of the Association of Personal Injury Lawyers. She says doctors continue to be nervous about apologising to patients and families despite assurances in the Compensation Act 2006 that to do so is not an admission of liability.

Mr Walker says some junior clinicians may be afraid of disciplinary action within the trust that arises from a complaint, which could hamper their chances of promotion. But he adds: "As far as the litigation process goes, there are no barriers to giving an honest apology in good faith and an honest explanation if indeed you know [what happened]."

The Litigation Authority has stated this position in a circular to the health service a number of times. "We don't want anyone in the NHS to be using [the threat of litigation] as an excuse for not doing what we think is the right thing," says Mr Walker.

When it comes to types of claims, Litigation Authority figures show surgery is subject to the highest number of claims, while obstetrics and gynaecology outstrips all specialties in terms of cost. Royal College of Surgeons president John Black says surgery is vulnerable to claims because it is measurable. "If you've had an operation and something goes right or wrong, you know straight away," he says. "You would be very lucky to get through a career in the NHS without having any claims made against you. I think most people just learn to live with it and have to accept it."

He adds that many claims result from unrealistic expectations and that surgeons are putting increasing emphasis on explaining the risks and benefits of surgery to patients.

Disproportionate concerns

The growing number of claims is having an impact on recruitment, says Royal College of Obstetricians and Gynaecologists president Sabaratnam Arulkumaran. "One of the reasons why many people don't come into the specialty of obstetrics and gynaecology is because of the fear of litigation and complaints," he says.

Yet while there is an increasing emphasis on patient safety across health, including in obstetrics and gynaecology, the overwhelming view from all sides is that clinicians' worries about being sued are disproportionate.

The number of claims against the health service is actually decreasing and it is estimated that just 0.5 per cent of all adverse clinical incidents result in litigation. "It's a complete myth that there's a litigious culture," says Mr Walsh. "The number of people who are taking legal action is far fewer than one would expect, given the number of accidents there are."

But HSJ spoke to a consultant psychiatrist who works in England and has experienced litigation in the NHS several times. Two cases involved lawyers and related to the side-effects of prescribed medication. The first lasted two years before being dropped by the claimant. The second took four years and was settled out of court.

"It was awfully stressful," the consultant says, adding that nervousness over litigation and complaints has changed the way he and his colleagues work. "We all practise defensively; we are very wary."

He believes the result is that innovation is stifled. As a consultant, he sees patients who have failed to benefit from other treatment, but he has stopped prescribing medications in unorthodox ways.

"You don't take risks. You're on your guard all the time. I teach my juniors not to use things outside the British National Formulary, although a large number of doctors across all specialties do not adhere to it," he says. But he adds: "Once you've had a case like I had, you probably will not."